Norman v. Dovey

Petitioner, a state prisoner proceeding pro se, has filed a third amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 20, 2009, the undersigned ordered respondent to file and serve a response to the petition. On October 6, 2009, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and that petitioner failed to properly exhaust his federal habeas claims by first fairly presenting them to the highest state court. Petitioner has filed an opposition to the motion.

BACKGROUND

On July 26, 2001, a Sacramento County Superior Court jury found petitioner guilty of second-degree murder and assault on a child likely to produce bodily injury resulting in death. A number of sentencing enhancement allegations were also found by the jury to be true.

On August 23, 2001, the Sacramento County Superior Court sentenced petitioner to an indeterminate term of fifty-eight years to life in state prison. On May 28, 2003, the California Court of Appeal for the Third Appellate District affirmed petitioner's judgment of conviction. On August 27, 2003, the California Supreme Court denied review. (Pet. at 2; Resp't's Lodged Docs. 1-4.)

Petitioner subsequently filed four petitions seeking habeas corpus relief in state court. Under the mailbox rule, on September 7, 2005, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on October 17, 2005. On or about December 27, 2005, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on January 5, 2006. On February 27, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on October 25, 2006. Finally, on March 2, 2006, petitioner filed a second petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on April 25, 2006. (Resp't's Lodged Docs. 5-12.)

On October 3, 2006, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court. The court dismissed the petition with leave to amend. Although petitioner filed an amended petition, the court subsequently dismissed it and also dismissed petitioner's second amended petition with leave to file a third amended petition. On August 17, 2009, petitioner filed his third amended petition.

RESPONDENT'S MOTION TO DISMISS

I. Respondent's Motion

Respondent moves to dismiss the pending petition, arguing that it is time-barred.

Specifically, respondent argues that on August 27, 2003, the California Court Supreme Court denied petitioner's petition for review, causing his judgment of conviction to become "final" on November 25, 2003, after the time for filing a petition for writ of certiorari expired. Respondent argues that the one-year statute of limitations for the filing a federal habeas petition began to run the following day, on November 26, 2003, and expired one year later on November 25, 2004. (Resp't's Mot. to Dismiss at 3.)

Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. Respondent argues, however, that petitioner did not file his first state habeas petition until after the statute of limitations for the filing of a federal petition had expired. Respondent argues that petitioner's filings in state court after the AEDPA statute of limitations expired cannot serve to restart the clock at zero or otherwise save a claim for federal habeas relief from being time barred. In addition, respondent argues that the Sacramento County Superior Court denied petitioner's first and fourth petitions for writ of habeas corpus as untimely. Respondent contends that untimely petitions are not "properly filed," and therefore cannot serve to toll the AEDPA statute of limitations period. (Resp't's Mot. to Dismiss at 3-4.)

Respondent also argues that petitioner failed to properly exhaust his federal habeas claims by first fairly presenting them to the highest state court. Specifically, respondent argues that petitioner first filed a petition for review that raised only two issues, neither of which mirror the claims petitioner raises in his pending federal habeas petition. Petitioner next filed a petition for writ of habeas corpus with the California Supreme Court. Although that petition contained the same seven claims that petitioner raises in his pending federal petition, respondent contends that it did not serve to satisfy the exhaustion requirement because the California Supreme Court denied that habeas petition with citations to the decisions in People v. Duvall, 9 Cal. 4th 464, 474 (1995) and In re Swain, 34 Cal. 2d 300 (1949). According to respondent, the California Supreme Court's citation to these cases means that petitioner failed to present the claims in his petition with sufficient particularity. (Resp't's Mot. to Dismiss at 4-6.)

II. Petitioner's Opposition

In a brief opposition to respondent's motion to dismiss, petitioner summarily argues that he could not file a timely federal petition from October 2003 through March 2004 or from June 11, 2004, through April 2005 because he was being involuntarily medicated with antipsychotic drugs and housed in administrative segregation units pursuant to California Administrative Code Title 15, § 3364(b). Petitioner also argues that he could not file a timely federal habeas petition from 2003 through April 2005 because ...

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